Citation Nr: 0024495
Decision Date: 09/14/00 Archive Date: 09/21/00
DOCKET NO. 99-09 690 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to an increased evaluation for symptomatic
spondylolysis at L5, currently rated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran had active duty from February 1991 to September
1991.
This appeal arose from a January 1999 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Indianapolis, Indiana, which evaluated the veteran's
symptomatic spondylolysis at L5, as 40 percent disabling.
The veteran has also indicated that she believes she has a
neck disability which should be service-connected. This
contention is referred to the RO for appropriate action.
REMAND
The Board finds that the veteran's claim is "well grounded"
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991),
which gives rise to the VA's duty to assist. Under these
circumstances, the VA must attempt to obtain all such medical
evidence as is necessary to evaluate the severity of the
veteran's disability. Goss v. Brown, 9 Vet. App. 109, 114
(1996); Floyd v. Brown, 9 Vet. App. 88, 98 (1996); Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
The veteran seeks an evaluation in excess of 40 percent for
her service-connected symptomatic spondylolysis at L5. By a
rating decision rendered in October 1991, the RO granted
service connection for that disorder and assigned a 10
percent rating effective September 1991, which was
subsequently increased to 40 percent. The veteran's
disability was most recently reevaluated by the RO in January
1999, following a November 1998 routine reexamination. The
veteran reported in May 1999 that she had been receiving
ongoing treatment from private sources for her service-
connected back problem as well as her neck problem.
A review of the record reveals that the veteran has undergone
a VA examination for the evaluation of her service-connected
back disability, but that no indication of pain was noted
during the examination, and the claims folder was not
reviewed by the examiner. The veteran has recently
emphasized that her back disability is productive of
debilitating pain. The U.S. Court of Appeals for Veterans
Claims (Court) held in DeLuca v. Brown, 8 Vet. App. 202
(1995), that, in evaluating a service-connected disability
involving a joint, the Board erred in not adequately
considering functional loss due to pain under 38 C.F.R. §
4.40 (1999) and functional loss due to weakness,
fatigability, incoordination or pain on movement of a joint
under 38 C.F.R. § 4.45 (1999). The Court found that
diagnostic codes pertaining to range of motion do not subsume
38 C.F.R. § 4.40 and § 4.45, and that the rule against
pyramiding set forth in 38 C.F.R. § 4.14 (1999) does not
forbid consideration of a higher rating based on a greater
limitation of motion due to pain on use, including use during
flare-ups. The Board is of the opinion that an additional
medical examination addressing these criteria, undertaken
following a longitudinal review of the history of the
veteran's service-connected back disability, could be
helpful. Also, see 38 C.F.R. § 4.2 (ratings to be assigned
"in the light of the whole recorded history.")
Further, according to the veteran, additional treatment has
taken place over the past two years. Notably, records were
received from those sources several years ago, but they are
not current. Current records of any additional pertinent
treatment would also be helpful.
Therefore, to ensure that VA has met its duty to assist the
appellant in developing the facts pertinent to the claim, the
case is REMANDED to the RO for the following development:
1. The RO should request that the
veteran identify all sources of medical
treatment which pertain to her
symptomatic spondylolysis at L5, and that
she furnish signed authorizations for
release to the VA of private medical
records in connection with each non-VA
medical source she identifies. Copies of
the medical records from all sources she
identifies, which are not currently of
record, should then be requested and
associated with the claims folder.
2. The veteran should be afforded a VA
orthopedic examination to determine the
severity of her service-connected
symptomatic spondylolysis at L5. The
claims folder should be made available to
the examiner for review before the
examination. The examination should
include all relevant tests and X-rays.
The examination must include measurements
of the ranges of motion in degrees. The
examiner should be asked to determine
whether there is weakened movement,
excess fatigability, or incoordination
attributable to the service-connected
disability; and, if feasible, these
determinations must be expressed in terms
of the degree of additional range of
motion loss due to any weakened movement,
excess fatigability, or incoordination.
The examiner should be asked to express
an opinion on whether related pain could
significantly limit functional ability
during flare-ups or during periods of
repeated use. This determination should
also, if feasible, be portrayed in terms
of the degree of additional range of
motion loss due to pain on use or during
flare-ups.
3. After completion of the above
requested action, the RO should again
review the claim for an evaluation in
excess of 40 percent for symptomatic
spondylolysis at L5, in light of all
pertinent evidence and all applicable
laws, regulations, and case law.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified. The appellant has the right to
submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).